31st March, 2014: The Naz Foundation (India) Trust, the original petitioner in the constitutional challenge to Section 377, has filed a curative petition challenging the Supreme Court decision in Suresh Kumar Koushal v. Naz Foundation (hereinafter ‘Koushal’) delivered in December, 2013 that upheld the validity of Section 377, IPC and set aside the Delhi High Court judgment, which had decriminalized adult consensual sexual acts in private in 2009.
Highlighting the fundamental principles of ‘justice is above all’ and ‘no party should suffer because of mistake of the Court’, the petition points out that the present case remains a fit case for the exercise of curative jurisdiction by the Hon’ble Supreme Court. The curative jurisdiction has been developed by the Court itself to deal with extraordinary situations, wherein gross miscarriage of justice or immense public injury has been caused, on account of a decision of the Supreme Court, whose judgments ordinarily are final and are binding in nature.
Pertinently, the most glaring error in the Supreme Court decision is the failure of the Court to notice the effect of the amendment in the offence of rape in Section 375, IPC on Section 377. After the Criminal Law (Amendment) Act, 2013, Section 375 prohibits both penile vaginal and penile-non vaginal sexual acts between man and woman, without consent. By implication, such sexual acts between man and woman, which are consensual, are not criminalized anymore. Therefore, consensual penile non-vaginal acts in a heterosexual context would be out of the ambit of Section 377, otherwise the amendment in Section 375 would become meaningless. Presently, in effect, Section 377 only criminalises all forms of penetrative sex, i.e., penile-anal sex and penile-oral sex, between man and man, which makes it ex faciediscriminatory against homosexual men and transgender persons and thus violative of Article 14. The amendments came into force in February, 2013, long after the conclusion of final arguments in March, 2012 but way before the pronouncement of the judgment in December, 2013. The Court ought to have noticed the import of the statutory amendments and their effect on Section 377 and ruled accordingly.
The Petition further notes the gross miscarriage of justice that has resulted from the Supreme Court decision in misreading the legislative intention in not amending Section 377 during the criminal law amendments in 2013. At the time of debating changes to the rape law, Section 377 was raised in the Lok Sabha, but the House refrained from discussing it, because the matter was sub-judice. This legislative deference to judicial process cannot be seen as an endorsement of the existing Section 377 and by doing so, the Supreme Court has committed a manifest error of law.
The petition also highlights several other instances of patent errors on the face of the record in the judgment, including non-consideration of the main contentions of the Curative Petitioner and wrong application of law, which have caused manifest injustice, affecting lakhs of homosexual men and transgender persons in India.
In light of the significant import of the issues raised in the curative petition, the petition has sought an oral hearing of the petition as well as an interim stay on the Koushal decision.
Shashi Tharoor suggests Kerala take the lead on Sec 377:
Here are the opportunities and challenges
Can Kerala point the way for India?
It was in December 2013 that the Supreme Court in a controversial judgment set aside the earlier Delhi High Court verdict on Section 377 of IPC that criminalises sexual intercourse ‘against the order of nature’. While the order resulted in homosexuality being criminalised again, the court clearly said Parliament must debate the matter and clear the confusion. Since then, Congress MP from Thiruvananthapuram and noted author Shashi Tharoor, one of the few lawmakers in the country who has expressed interest in the issue, twice tried to move a private member’s bill in Lok Sabha with the aim of initiating at least a debate. Both times, it was shot down with an overwhelming number of lawmakers voting against the introduction of the bill.
In an interview with indianexpress.com last year, Tharoor took a shot at the ruling BJP and said, “The irony is the party of Hindutva is betraying all the ancient Hindu traditions of tolerance for sexual deviancy of various sorts and various forms of sexual self-expression in favour of the Victorian morality that was imposed upon India, and which was not part of our moral codes and practices. The irony of all this is compounded by the fact that they won’t even let the bill be discussed in Parliament.”
But Tharoor has not given up. In a Facebook post recently, the Congress MP posted a picture of himself in conversation with Kerala chief minister Pinarayi Vijayan in which the two leaders talked about how Kerala should send a signal to the rest of the country by decriminalising Section 377 in the state. Tharoor had also sent a letter to Vijayan in August, 2016 urging the chief minister to consider introducing a similar legislation in the state Assembly to amend the existing Act.
Now, the state may be governed by the LDF, the principal rival to Tharoor’s party, but he may find hope in the idea of how Kerala has shone as a model state in the country especially when it comes to ensuring rights for marginalised communities and drawing a safety net for those who have fallen out of the ambit of the government’s welfare measures.
There are many cases in point.
One, in 2015, it became the first state to unveil a transgender policy with an aim to eliminate all kinds of stigma towards the sexual minority group and bringing them the social and economic opportunities that have so far eluded them. Besides, it allows members of the community to identify themselves as male, female or as transgender – a basic point of contention that the group has raised.
Two, a number of sex reassignment surgeries have been reported recently in the state after the government in 2016 offered such surgeries at free or nominal rates at government hospitals. This was considered to be a huge boost for the transgender community that has had to spend heavily and travel far for such surgeries.
Three, successive governments in the state have invested heavily in the social sector, mainly in the departments of health and education with far-reaching results. The number of schools grew, drop-out rates plummeted and districts with large tribal population such as Wayanad and Idukki started showing results. Moreover, the infant mortality rate in the state, comparable with developed countries in the West, came down.
Four, even with sporadic incidents of moral policing being reported every year and couples being harassed, the state has spawned movements like the ‘Kiss of Love’ in which people came out on the streets to fight back against orthodox, autocratic groups. People of the LGBT community donned rainbow colours to prove their point.
Five, that the state is one of the few in the country with a positive sex ratio, low population growth, best end-of-life care and best female life expectancy stresses that it is in tune with social realities and eager to reverse the traditional indices of development in other states that are mainly focused on fast industralisation and job creation.
So, in light of these advancements made by the state, can Tharoor’s idea see light of day? A legal expert said there is a possibility although it involves great political challenges.
Tripti Tandon, an advocate with the Lawyers Collective, said the state government can move a bill in the Assembly seeking to amend the IPC section. Since law and order falls under the concurrent list, the state government can take appropriate and determined steps to prevent the harassment of the members of the community.
“The proper course of action would be, if we are really serious, to move a bill. But I think it will take a lot because it has high stakes. It is not something that can be done lightly,” said Tandon. “For it to have any weight and any seriousness and any possibility of getting enacted, it will have to be moved by the government.”
She said the Supreme Court has left the door open for debate to take place in Parliament and implicitly in the state legislatures. But she cautioned that it will be a bold step and necessary measures will have to be taken. “You have to be convinced about what you are doing because it will have further legal complications. It will be questioned. It may not be passed. Locally, there will be resistance, political as well as legal. They will have to be fairly bold and everyone will have to be on board for something like that,” Tandon added.
In Kerala, movements for gender equality may have taken place, but conservative sections have always dictated public policy. The presence of high dowry rates, suicide rate among women and low female workforce rate in the state are also indicative of that. Tharoor may choose to walk the lonely path but political leaders fear losing their conservative vote if they back such motions. The ball, of course, is in the court of the ruling Left government and whether it is willing to take that risk for the greater good.
[caption id="attachment_239" align="aligncenter" width="677"]
An LGBT rights activist waves the rainbow flag after the Supreme Court referred the section 377 curative petition to a five judge Constitution Bench for further examination on Tuesday. Express photo by Oinam Anand. 02 February 2016 *** Local Caption *** An LGBT rights activist waves the rainbow flag after the Supreme Court referred the section 377 curative petition to a five judge Constitution Bench for further examination on Tuesday. Express photo by Oinam Anand. 02 February 2016[/caption]
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